ETS in 1985, military exam but no VA C&P

[kanewnut]

I applied for disability and was examined before leaving the military. The VA never scheduled me for a C&P. Is this considered a CUE? I am guessing that C&P's have always been required, but under what circumstances? Was my exam by the military before ETSing the same as a C&P? I have searched but can't find the answer.

[Richard1954]

3 hours ago, asknod said:

Well, this isn't quite true, sir. It might be considered CUE not to reconsider the claim under the auspices of §3.156(c). Nevertheless, VA litigators like me consider it a pending claim once the service department records are introduced (regardless if you just now found some today that were introduced in 2015 in your claims file), the best way to file for it (CUE) is a 526EZ to make it happen sooner. Why fight CUE when you can use the less onerous §3.156(c)?

Thank you for the  information,  but I don't see how it can  be a CUE  if the VA did not have the medical records to begin with.....?????? So now I am   Bewildered... I will take a look at 3.156C and Shea v Wilkie I might just learn something

[kanewnut]

2 hours ago, Richard1954 said:

I don't see how it can  be a CUE  if the VA did not have the medical records to begin with..

Why do you think the VA did not have the medical records?

[Richard1954]

1 hour ago, kanewnut said:

Why do you think the VA did not have the medical records?

I apparently missed something the first time I read your posting.... sorry about that ..

[broncovet]

CUE and reopening due to new and material (now known as "relevant" evidence) via 38 cfr 3.156 are very different, and have a much different legal standard.  

If you have both options available (Cue and 3.156), you should choose the path of least resistance, and that is 3.156.  

Its possible, or even likely, that the same claim could succeed under 3.156, but fail as a CUE, for several reasons:

1.  3.156 claims retain the benefit of the doubt, while Cue does not.  

2.  3.156 does not require the evidence be "outcome determinative".  Your new evidence, coupled with existing evidence could make it fly.  Cue must be outcome determinative and not "harmless error."  Example:  The VA misspells a word in your decision.  Yes, they have spell check, but they could easily misspell a doctors name.  This is not outcome determinative, and this cue would fail.  

3.  The standard of review is different.  CUE is the highest standard and thus, the most difficult for the Veteran.  

4.  New and "relevant" evidence should also permit the Veteran to introduce an IMO, if needed, to the claim.  It may be "relevant", but not necessarily conclusive, but the IMO could supply that extra bump to make your claim succeed.  This would apply to 3.156 b (pending claim), but may not work as well for 3.156 c, new service records.  

Edited June 23, 2019 by broncovet

[FormerMember]

On 6/21/2019 at 7:25 AM, Richard1954 said:

This would not necessarily been a cue.. you stated that you had to send  them a copy of a page from your service medical records.. if the VA did not have the medical record(s)   that showed this condition then they will argue that no cue exist since the medical record in their possession did not contain the necessary medical information to rate the neck. 

Well, this isn't quite true, sir. It would be considered CUE not to reconsider the claim under the auspices of §3.156(c). While VA litigators like me consider it a pending claim once the service department records are introduced (regardless if you just now found it in your claims file), the best way to file for it is a 526EZ to make it happen sooner. VA will try to consider it a forbidden freestanding claim for an earlier effective date. They will be the ones to recharacterize it as a CUE. 

Read Blubaugh v. McDonald here to get a really nuanced grip on §3.156(c) https://www.leagle.com/decision/infco20141209128

In addition, you could go to the CAVC  in 2017 and read Kisor v. Shulkin to get the drift of where the VA would like to take this. But---- Kisor got cert at the SCOTUS and we're all waiting eagerly for them to spill the beans this month.

 Relevant has always been the reopening metric in §3.156(c)(1). The only thing that makes this unique is that they have to be service department records which no litigator from VA has ever set eyes on. Here, in the instant case we are discussing, it depends if the military ever put a copy in the claims file. If VA rated on the military's record without a c&P- all well and fine. But if they never went to St. Louis and the NPRC to get a copy of the STRs, then anything Kanewnut sends in are, ipso facto,  §3.156(c) records. 

Since the M 21 has no provision for filing a freestanding claim for earlier effective date, they will automatically reinterpret any §3.156(c) filing as a CUE. I try to squeeze them into an appeal I'm working or scoot them in as inextricably intertwined at the DRO hearing.  VA generally ignores them.Here's an example:

 

 

Chris NOD.pdf extra NOD pages.docx

[GeekySquid]

46 minutes ago, asknod said:

The only thing that makes this unique is that they have to be service department records which no litigator from VA has ever set eyes on.

@asknod this part begs a question.

If your STRs are in your record during a claim and another part of your claim uses those same records but one part says they don't exist, how does that scenario fit under New and Relevant based on your phrasing here.

The reason I asked is I was denied under New and Material as the records were not New and Material, but the original claim explicitly denied their existence but that was predicated on them claiming to only review 4 years of my service.

Mean while the rest of my claim that was awarded was based on the very same records that I was denied on as not existing, then denied as New and Material.